HomeMy WebLinkAboutCP-21-SA-0000118-2008
COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
:
:
v. : CHARGE: APPEAL FROM SUMMARY:
: WINDSHIELD OBSTRUCTION AND
: WIPERS (SUM.)
:
BENJAMIN J. BRUBAKER : CP-21-SA-0118-2008
IN RE: OPINION PURSUANT TO PA. R.A.P. 1925
OLER, J., February 18, 2009.
In this summary offense case, a pro se defendant has filed an appeal to the
Pennsylvania Superior Court from a judgment of sentence arising out of his violation of
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Section 4524(e)(1) of the Vehicle Code (sun screening and other materials prohibited).
The bases for the appeal have been expressed in a statement of matters complained of on
appeal as follows:
1.The evidence from the light meter should have been suppressed based
on testimony of Officer Pryor, precedent case law presented at the
hearing, and the Fourth Amendment of the Constitution.
2.The sun screening devices are implicitly legal as defined by Statute
4524(e)(1) of the Vehicle Code on the basis that the defendant and the
complainant both stated ability to see and view the inside of the
vehicle.
3.Since testing for compliance of Statute 4524(e)(1) and 67 PA Code
175.67(d)(4) is not included in the State vehicle inspection procedure
as required by law, the sun screening regulations in 67 PA Code
Chapter 175 are invalid due to conflict with Statute 4727(b) of the
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Vehicle Code (Title 75). This is a violation of due process and the 14
Amendment of the Constitution. The sun screening regulations also
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Notice of Appeal, filed November 17, 2008; Act of June 17, 1976, P.L. 162, §1, as amended, 75 Pa. C.S.
§4524(e)(1). Defendant was sentenced to pay a fine of $25.00. Order of Court, October 21, 2008.
constitutionally conflict with 67 PA Code 175.34 and 67 PA Code
175.41.
4.The notice given in Statute 4524(e)(1) of the Vehicle Code is
constitutionally insufficient.
5.The definition of material which does not permit a person to see or
view the inside of a vehicle offered in 67 PA Code Chapter 175 goes
beyond simply being in furtherance of Statute 4524(e)(1).
6.Commonwealth’s Exhibit [1] should not have been admitted as
evidence over the objection of Defendant.
7.The burden of proof was not met because the Commonwealth failed to
show that the vehicle was in violation of FMVSS No. 205.
8.There could be no violation because that would mean PennDOT, the
Independent Regulatory Review Commission, and the State Inspection
Stations which inspected the vehicle would have broken the law.
9.The Court should have agreed with the decision of Not Guilty rendered
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in Lower Paxton Township.
This opinion in support of the judgment of sentence is written pursuant to
Pennsylvania Rule of Appellate Procedure 1925(a).
STATEMENT OF FACTS
The de novo trial in this court on Defendant’s appeal from summary was held on
September 2, 2008, and October 21, 2008. The evidence at trial may be summarized as
follows:
On March 28, 2008, shortly after four o’clock in the afternoon, Officer Lane Pryor
of the Camp Hill Borough Police Department was patrolling the area of the Route
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Concise Statement of Matters Complained of on Appeal, filed November 19, 2008.
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15/Route 581 interchange in Camp Hill, Cumberland County, Pennsylvania. He
observed a red 1991 Acura Integra, registered in Pennsylvania, with after-market sun
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screening on the front and rear side-windows. Officer Pryor believed that such tinting
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constituted a violation of section §4524(e)(1) of the Vehicle Code, and consequently
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stopped the vehicle. Officer Pryor determined that Defendant was the driver and sole
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occupant of the vehicle. Defendant’s mother, Jill R. Frank, was the registered owner of
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the vehicle.
At the trial, Officer Pryor explained his reason for stopping Defendant’s vehicle.
He stated that he pulled the vehicle over because he could clearly tell that an after-market
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sun screening product had been applied to the windows, and was concerned that the
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particular product used violated the Pennsylvania Vehicle Code. While it was not
impossible for Officer Pryor to perceive Defendant through the windows of the vehicle in
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broad daylight, his impression was that the tinting was sufficiently opaque to prevent an
outsider from seeing or viewing inside the vehicle in a decreased lighting situation and
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N.T. 5, Trial, September 2, 2008 (hereinafter Sept. 2 N.T. _ ).
4
Sept. 2 N.T. 5.
5
Sept. 2 N.T. 5-11.
6
Sept. 2 N.T. 5.
7
Sept. 2 N.T. 5.
8
Sept. 2 N.T. 6.
9
Sept. 2 N.T. 6.
10
Sept. 2 N.T. 6-14.
11
Sept. N.T. 11.
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was thus in violation of the Vehicle Code. In this regard, he noted that the
Pennsylvania Department of Transportation (“PennDot”) had promulgated a regulation,
pursuant to the Vehicle Code, mandating that a vehicle’s window be sufficiently
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translucent to permit light to pass through it at a rate of 70 percent or greater.
To determine if the vehicle did in fact violate the Vehicle Code, Officer Pryor
used a window tint and reflectivity meter to measure the percentage of light transmitted
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through the glass. According to Officer Pryor, the device used was calibrated upon its
purchase in 1996, and was tested by him at the time of the traffic stop to ensure that the
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device was functioning properly. After he determined that the device was reliably
measuring the light, Officer Pryor used it on Defendant’s vehicle to test the level of light
transmitted through the vehicle’s tinted windows. He found that only 36.3 percent of
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light was passing through Defendant’s front passenger side window, which was much
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Sept. N.T. 11; N.T. 20-21.
13
Sept. 2 N.T. 8-9.
14
Sept. 2 N.T. 12.
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Sept. 2 N.T. 12-13, 15. Defendant objected to the admission of Commonwealth’s Exhibit 1, the
calibration certificate, on the basis that the device was not calibrated at a state-approved facility and
because the person who calibrated the device was not present at the trial. Sept. 2 N.T. 24-28. The court
admitted the exhibit over the objection of Defendant because the court found Officer Pryor’s testimony as
to the calibration of the device credible (see N.T. 12 (“The manufacturer made sure that it was calibrated
properly before they shipped it….”); N.T. 13 (“So the first thing I will do is make sure that the battery’s
good, and that [the device is] within the range of that it should be. It’s called a range of tolerance. And it
was at that time of the stop, 15.6 percent was within that range of tolerance and operating properly.”).
The court was not aware of any statute or regulation requiring that the device be calibrated at a state-
approved facility, nor of any burden upon the Commonwealth to present an employee of the manufacturer
as a witness in a case involving its use.
16
Sept. 2 N.T. 14.
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less than the 70 percent required by law. Thus, as a result of the low transmittal level of
the windows on the vehicle operated by Defendant, Officer Pryor issued Defendant a
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traffic citation for a violation of section 4524(e)(1) of the Vehicle Code.
Defendant advanced the position that the after-market sun screening devices
applied to the windows of the vehicle in question were not in violation of section
4524(e)(1) of the Vehicle Code, which prohibits sun screening devices that prevent an
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outsider from seeing or viewing the inside of the vehicle. Defendant argued that any
reasonable person looking at the vehicle would be able to see and view the inside of the
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vehicle, just as Officer Pryor had been able to see and view the inside of the vehicle. In
addition, to support his position as to the transparency of the windows on the vehicle,
Defendant told the court about an “experiment” he performed in which he stood outside
the vehicle in question, looked through the tinted driver’s side-window and read six
point, Times New Roman font on a sheet of paper placed on the floor in front of the
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driver’s seat. Defendant argued that his ability to read the type demonstrated an
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outsider’s capacity to see and view the inside of the vehicle.
Next, Defendant argued that the regulations found in Section 175.67 of the
Pennsylvania Administrative Code, promulgated by PennDot pursuant to Section
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Sept. 2 N.T. 8-9, 14-16; 67 Pa. Code §175.67.
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Sept. 2 N.T. 16; 75 Pa.C.S. §4524(e)(1).
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N.T. 12-13, Trial, October 21, 2008 (hereinafter Oct. 21 N.T. _ ); 75 Pa. C.S.A. §4524(e)(1).
20
Sept. 2 N.T. 11; Oct. 21 N.T. 12-13.
21
Oct. 21 N.T. 13.
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Court Exhibit 1.
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4524(e)(1) of the Vehicle Code, contradicted the Code. The regulations classify material
which does not permit an outsider to see or view the inside of a vehicle as a material
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which reduces light transmittance levels to below 70 percent. According to Defendant,
since the light transmittance level of the windows on the vehicle in question was found to
be only 36 percent – well below the 70 percent requirement in the regulations – an
outsider should not have been able to see or view the inside of the vehicle in question.
However, both he and Officer Pryor testified that they were able to see and view the
inside of the vehicle. Therefore, according to Defendant, PennDot’s regulations
exceeded the Vehicle Code’s requirements by prohibiting certain sun screening materials
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that actually did allow an outsider to see and view the inside of a vehicle.
Defendant also noted that, although PennDot’s regulations prohibited sun
screening devices which reduced light transmittance levels to below 70 percent, the
regulations made an exception for any sun screening devices permitted under Federal
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Motor Vehicle Safety Standard (“FMVSS”) 205. Defendant argued that, “if a vehicle
complies with FMVSS number 205, then the vehicle’s exempt from the requirements of
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Table X.” In addition, Defendant asserted that Officer Pryor was not familiar with
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FMVSS 205 and offered no testimony that the vehicle was in violation of FMVSS 205.
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Oct. 21 N.T. 14; 75 Pa. C.S. §4524(e)(1).
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Oct 21 N.T. 14-15.
25
Oct. 21 N.T. 16; Sept. 2 N.T. 19-20; 49 C.F.R. §571.205.
26
Oct. 21 N.T. 16.
27
Oct. 21 N.T. 16; Sept. 2 N.T. 19-20.
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Therefore, according to Defendant, “the burden of proof for this case should be on the
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state to show that the vehicle was in violation of FMVSS 205.”
To further support the proposition that the sun screening devices on the vehicle in
question complied with the law, Defendant noted that, after he had applied the sun
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screening devices to the windows, the vehicle had passed a Pennsylvania inspection.
Defendant asked the court: “Why would [the vehicle] pass state inspection at an
approved, certified inspection station, but fail when along the side of the road and
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stopped by an officer of the law?” Defendant pointed out that Section 4727(b) of the
Vehicle Code specifies that “an official certificate of inspection shall not be issued unless
the vehicle or mass transit vehicle is inspected and found to be in compliance with this
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chapter including any regulations promulgated by the department.” While he
recognized that Pennsylvania inspection stations were no longer required by law to check
for sun screening violations during inspection, Defendant argued that the stations should
be required to check for such violations in order to certify that a vehicle complied with
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the Vehicle Code and the department’s regulations. According to Defendant, as a
consequence of the vehicle’s receipt of an inspection certificate, he believed that the
vehicle complied with the Commonwealth’s laws and regulations pertaining to sun
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Oct. 21 N.T. 16.
29
Sept. 2 N.T. 17.
30
Oct. 21 N.T. 19.
31
Oct. 21 N.T. 19, 22-23; 75 Pa. C.S.A. §4727(b).
32
Oct. 21 N.T. 23.
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screening devices. Defendant argued that he had a right to know, at the time of
inspection, if the vehicle complied with the laws and regulations, “but under the current
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regulations [he did] not have this right.” Defendant asserted that this alleged lack of
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notice was a violation of due process and the Fourteenth Amendment.
Finally, Defendant argued that the traffic stop itself was unreasonable and in
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violation of his Fourth Amendment rights. Officer Pryor testified that he stopped
Defendant’s vehicle because he believed the after-market sun screening on the vehicle
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might have been in violation of the Vehicle Code. Defendant argued that stopping a
vehicle “simply” because of its after-market sun screening was “not the legal standard for
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a traffic stop of this nature.” Instead, according to Defendant, “the proper legal
standard for a traffic stop of this nature [was] whether or not the officer can see or view
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the inside of the vehicle, as outlined in [Section 4524 of the Vehicle Code].” In support
of his opinion, Defendant argued that an officer must have a “reasonable articulable
suspicion” that a traffic violation has occurred or is occurring. Defendant contended that,
for a window tint violation, a reasonable articulable suspicion would occur only when an
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Oct. 21 N.T. 18-23; Court Exhibit 1.
34
Court Exhibit 1.
35
Court Exhibit 1.
36
Oct. 21 N.T. 18.
37
Oct. 21 N.T. 16-18.
38
Oct 21 N.T. 17-18.
39
Oct. 21 N.T. 17.
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officer could not see or view the inside of the vehicle. Since Officer Pryor testified that
he could see and view the inside of the vehicle at the time of the traffic stop, Defendant
argued that he lacked a reasonable articulable suspicion to stop the vehicle and,
consequently, violated Defendant’s Fourth Amendment rights.
Defendant was afforded a trial before a magisterial district judge where he was
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found guilty. Defendant then appealed to this court. After a de novo trial, the
Defendant was again found guilty and the following order was entered:
st
AND NOW, this 21 day of October, 2008, upon consideration of
Defendant’s Appeal from Summary, and following a de novo trial, the
Court finds the Defendant guilty of a violation of Section 4524(e)(1) of the
Vehicle Code. The sentence of the Court is that the Defendant pay the
costs of prosecution, a fine of $25, a $10 Emergency Medical Services
Fund assessment, and a $30 CAT fund surcharge.
The Defendant is notified of his right to appeal to the Pennsylvania
Superior Court from the sentence imposed herein within 30 days of its
entry.
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Oct. 21 N.T. 18.
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In his Statement of Matters Complained of on Appeal, Defendant states that the “Court should have
agreed with the decision of Not Guilty rendered in Lower Paxton Township.” In Court Exhibit 1,
Defendant writes:
I have been cited in relation to this issue in one other instance by the Lower Paxton
Township Police. I was actually cited for failing to respond to a warning card for this
issue. The ruling by the Magisterial District Court was that I was not guilty. I would ask
this Court to take that ruling into consideration before rendering a decision.
Defendant failed to provide the court with any further information regarding the alleged prior citation and
the court did not regard this testimony as dispositive of the case before it.
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STATEMENT OF LAW
The National Highway Traffic Administration of the United States Department of
Transportation has adopted Federal Motor Vehicle Safety Standard (“FMVSS”) 205, 49
C.F.R. §571.205, which sets forth specific requirements for glazing materials that can be
used in motor vehicles. Id. The purpose of FMVSS 205 is “to ensure a necessary degree
of transparency in motor vehicle windows for driver visibility, and to minimize the
possibility of occupants being thrown through the vehicle windows in collisions.” Id. at
S2. FMVSS 205 incorporates by reference the American National Standard for Safety
Glazing Materials for Glazing Motor Vehicles and Motor Vehicle Equipment Operating
on Land Highways-Safety Standard ANSI/SAE Z26.1-1996, which, in pertinent part,
requires that windshields and front side windows installed in passenger cars by
automobile manufacturers transmit at least 70 percent of the light striking them. See 49
C.F.R. §571.205 and ANSI/SAE Z26.1-1996 at 13. The federal regulation applies only
to windows installed by the manufacturer, not to post-manufacture tinting, and it does not
apply to rear windows of passenger cars.
The post-manufacture tinting of motor vehicle windows, which is normally
accomplished by means of a plastic film or metallic laminate applied to the interior side
of the window, is regulated largely at the state level, and the standards vary from state to
state. In this Commonwealth, post-manufacture tinting is governed by a provision in the
Vehicle Code and regulations promulgated by PennDot pursuant to it. Section
4107(b)(2) of the Vehicle Code prohibits a person from driving on any highway of this
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Commonwealth a vehicle that is equipped in any manner in violation of the Code or
department regulations. 75 Pa. C.S.A. §4107(b)(2).
Section 4524(e)(1) of the Vehicle Code, which governs glazing material in motor
vehicles, states that “[n]o person shall drive any motor vehicle with any sun screening
device or other material which does not permit a person to see or view the inside of the
vehicle through the windshield, side wing or side window of the vehicle.” 75 Pa. C.S.A.
§4524(e)(1).
Pursuant to this section of the Vehicle Code, PennDot adopted a regulation
pertaining to post-manufacture tinting, 67 Pa. Code §175.67, which reads, in relevant
part, as follows:
A sun screening device or other material which does not permit a person to
see or view the inside of the vehicle is prohibited, unless otherwise
permitted by FMVSS No. 205, or a certificate of exemption has been issued
in compliance with §175.265 (relating to exemption provisions). See Table
X for specific requirements for vehicles subject to this subchapter.
Passenger car requirements relating to the rear window are delineated by
vehicle model year in Table X.
67 Pa. Code §175.67(d)(4). Table X, titled Acceptable Light Transmittance Levels for
Vehicle Glazing, requires passenger cars to have a light transmittance level of 70 percent
or greater. See 67 Pa. Code §175, subch. 0, Table X. Light meters are used to determine
the light transmittance level of the windows of the vehicles in question.
When an officer reasonably suspects that a vehicle’s post-manufacture tint is not
in compliance with the statutory and regulatory requirements of the Commonwealth, he
or she is permitted to stop the vehicle, pursuant to Section 6308(b) of the Code, and use a
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light meter to determine if 70 percent or greater light is transmitted through the tinted
windows. In this regard, Section 6308(b) of the Vehicle Code provides that:
Whenever a police officer is engaged in a systematic program of
checking vehicles or drivers or has reasonable suspicion that a violation of
this title is occurring or has occurred, he may stop the vehicle, upon request
or signal, for the purposes of checking the vehicle’s registration, proof of
financial responsibility, vehicle identification number or engine number or
the driver’s license, or to secure such other information as the officer may
reasonably believe to be necessary to enforce the provisions of this title. 75
Pa. C.S. §6308(b).
The combined effect of the legislation and regulation is that (1) post-manufacture
tinting is permissible in the Commonwealth provided that it allows at least 70 percent
light transmittance, and (2) if a police officer observes a vehicle being driven on a
highway that he or she reasonably suspects is not in compliance with this requirement,
the officer may stop the vehicle and issue a citation if, in fact, the vehicle is found to be
in violation of the requirement.
In addition, although officers are permitted to issue citations for violations of the
the Commonwealth’s sun screening statutory and regulatory requirements, state certified
inspection stations are not required to ensure that the vehicles they inspect are in
compliance with the Commonwealth’s sun screening requirements. The Pennsylvania
Bulletin explains this situation as follows:
On September 28, 1996, the Department adopted regulations
regarding the use of window tinting (sun screening) on vehicles operated on
Pennsylvania highways. These regulations also eliminated the requirement
that sun screening be checked at the time of inspection. However, vehicle
owners who have sun screening materials that exceed the light
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transmittance requirements indicated [in Table X] may be stopped and cited
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while operating their vehicle on the highway.
APPLICATION OF LAW TO FACTS
In the present case, where Officer Pryor, based on his experience in the context of
what a properly tinted window would look like, had a reasonable articulable suspicion
that the post-manufacture window tint applied to the windows of the vehicle driven by
Defendant was in violation of the Commonwealth’s 70 percent light transmittance
requirement, and a properly calibrated light meter found the light transmittance level of
the vehicle’s windows to be only 36 percent, the court was not able to agree with
Defendant that any circumstance of this case rose to the level of a constitutional violation
of his rights. Accordingly, he was found guilty of violating Section 4524(e)(1) of the
Vehicle Code, and sentenced to pay a fine in accordance with the statute.
BY THE COURT,
_________________
J. Wesley Oler, Jr., J.
Andrea Filak, Certified Legal Intern
John C. Dailey, Esquire
Office of District Attorney
For the Commonwealth
Benjamin J. Brubaker
7 Summer Drive
Dillsburg, PA 17019
Pro Se Defendant
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PennDOT Bulletin, “Fact Sheet: Vehicle Sun Screening,” dated February 2003.
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